A very good question that is posed to me daily by Husband’s and Wives who are adjusting to their new status as a singleton, whether wished for or otherwise.
The Law relating to the division of assets on Divorce is set out at Sec 25 of the Matrimonial Causes Act 1973.
Although this is now relatively old legislation, it has been amended and updated with case law setting out precedents for the division of assets. The overriding objective of the court is to achieve fairness and equality according to the particulars of each individual circumstance. No two cases are the same and there are many times when identical assets pots would be divided in a different way as the parties circumstances require.
It is often crucial to seek legal advice from a specialist Family Lawyer – choose wisely and do your research before you trust the chosen lawyer with your case.
The simplest way of resolving a case is for the parties to provide voluntary financial disclosure of all of their assets, liabilities and income. The parties, usually through their solicitors, can then begin negotiations aimed at reaching a fair settlement.
If you are able to come to an agreement then this should be recorded in a Consent Order and filed at Court, to avoid your ex-spouse coming back and making a claim at a later stage.
If you cannot reach an agreement then an application to Court can be made. The Court sets out a timetable that must be followed. Most cases settle within this timetable. If the case does not settle it will progress to a final hearing.
The Court can make various orders including maintenance payments, lump sum payments, property transfers and orders relating to pensions.
The courts have a very wide discretion to re-distribute all of the assets of the parties having regard to all the circumstances of the case. The first consideration is to the welfare of any minor children of the family.
The powers of the Court and the factors that the Court must take into account are set out in the Matrimonial Causes Act 1973. These factors include:
The financial needs of the parties
The financial resources of the parties
The standard of living enjoyed by the parties throughout the marriage
The age of the parties and the duration of the marriage
Any physical or mental disability of either party
The contributions made by either party
The conduct of the parties (only in exceptional circumstances)
Since the House of Lords case, White v White, the guiding principles are:
Financial and domestic contributions should be treated equally
- The “yardstick of equality” (equal sharing of marital assets) should always apply unless there is good reason to depart from it
The needs of the parties must be satisfied first
There can be compensation for any economic disadvantage suffered by a party (rare and hard to prove)
If there is sufficient money to meet needs and any compensation then the principle of sharing applies
The overall aim is fairness to both parties
Generally the sharing principle applies to assets acquired during the marriage by either party, with adjustments being made if fair and reasonable. A departure from equality can be made if circumstances are appropriate. The law is complex and early advice is crucial to avoid unfairness.
The best piece of advice I would give to anyone who faces separation from their spouse, is to get sound legal advice before you agree to any division of assets.
Farleys Solicitors have a dedicated family law team who can provide comprehensive, down to earth legal advice on divorce and the division of assets. Call 0845 2870939 or submit your enquiry through our online form.
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